Have Your Cake, But Eat It Too? A Look at Anti-Discrimination Laws in Everyday Life

Dina Rosin (CMC ’20)

Is baking a cake an act of “speech”?  This question is at the heart of the case Masterpiece Cakeshop v. Colorado Civil Rights Commission which will be heard by the Supreme Court of the United States in the fall of 2017. In this case, the Supreme Court will have to decide whether refusing to bake a cake on the basis of religious beliefs is a protected right under the First Amendment. The ability of a state to enforce public accommodation laws or anti-discrimination laws when they conflict with religious beliefs or speech may hang in the balance of this decision.

In 2012 a same-sex couple commissioned a bakery, Masterpiece Cakeshop, in Denver, Colorado, to create a custom wedding cake in celebration of their wedding.  At the time, Massachusetts was the only state that allowed same-sex marriage, so the couple planned to travel to that state, get married, and then have a celebration back in Colorado with the cake.  Because same-sex marriage was not legally recognized by Colorado at the time, Masterpiece Cakeshop’s owner refused to fulfill the cake order based on his personal religious beliefs. He asserted that to bake this cake he would necessarily be expressing support for same-sex marriage, a practice he fundamentally disagreed with.  Colorado, along with 21 other states, prohibits discrimination based on sexual orientation. While the couple was ultimately able to get a cake elsewhere, they filed a complaint against Masterpiece Cakeshop under the Colorado Anti-Discrimination Act.  

Ever since the end of Jim Crow laws in the South, it has become fully accepted under state “public accommodation” laws that a store or restaurant cannot refuse to sell its goods or services to certain customers based on race, religion, gender or other factors.  For instance, a banquet hall could not refuse to rent its space to a same-sex couple for its celebration, as this would be unlawful discrimination. However, Masterpiece Cakeshop argues that creating a custom cake is different – that the artistic and creative nature makes this an act of “speech” and an “exercise of religion.” The specific issue in the petition for the Writ of Certiorari to the Supreme Court asks: “Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.” [Emphasis added]

On the one hand, it seems clear that if this cake shop is in the business of creating custom wedding cakes, that shop should not be able to choose which couples it deems worthy of those cakes. The American Civil Liberties Union (ACLU), working on behalf of the plaintiffs, argues that it would be unreasonable for people to assume that the fulfillment of a cake order for a same-sex couple constitutes “an expression of its approval of the customer’s marriage.” Furthermore, the cake shop could put up a sign saying that making a cake is not necessarily an endorsement of any messages on a cake in order to further separate their personal beliefs from their products.

However, Masterpiece Cakeshop’s lawyers argue that the First Amendment protects expression that extends past mere speech and to art (such as paintings or movies) is long established in legal precedent. They argue that while their materials are icing and fondant, cake artists are engaging in artistic expression. As such, the state should not be able to compel any form of such expression because forced artistic expression has not been previously legally upheld.

There have been previous cases in which a refusal to produce artistic work under this definition did not conflict with the Colorado Anti-Discrimination Act: when an African-American cake artist refused to create a cake supporting white-supremacism, a Muslim artist refused to create a cake denigrating the Quran, and three other cake artists refused to create cakes opposing same-sex marriage. Why should it be acceptable for these cake artists to refuse business they find objectionable, but the opponent of same-sex marriage be compelled to create a cake for a couple when he doesn’t want to? After all, there is no statute whereby a painter could be forced to accept a commission for a painting, and no one is troubled by that form of “discrimination.” This is the argument that the defendants are making.  

If one considers the creation of a custom cake an act of artistic expression, as compared to the provision of a standard good or service, the case seems far less open-and-shut. By the same token, allowing this shop to discriminate against same-sex couples opens pathways to other forms of discrimination against LGBT+ groups. If this form of compelled expression is ruled unconstitutional, then these arguments against provisioning services for the LGBT+ community will lose legitimacy. If on the other hand, the expression is ruled constitutionally protected, then the Court will have to decide how to balance free speech and anti-discrimination laws in the future. These are some of the conflictions the Supreme Court will be grappling with when it hears this precedent-setting case later this year.

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